Compensation and expenses of appointed counsel

(a) By the county, subject to the approval of the governing body of the county, in a proceeding in a county or justice court.

(b) By the public defense services executive director from funds available for the purpose, in a proceeding in a circuit court.

(2) Except for counsel appointed pursuant to contracts or counsel employed by the public defense services executive director, compensation payable to appointed counsel under subsection (1) of this section:

(a) In a proceeding in a county or justice court may not be less than $30 per hour.

(b) In a proceeding in a circuit court is subject to the applicable compensation established under ORS 151.216 (Duties).

(3)(a) A person determined to be eligible for appointed counsel is entitled to necessary and reasonable fees and expenses for investigation, preparation and presentation of the case for trial, negotiation and sentencing. The person or the counsel for the person shall upon written request secure preauthorization to incur fees and expenses that are not routine to representation but are necessary and reasonable in the investigation, preparation and presentation of the case, including but not limited to nonroutine travel, photocopying or other reproduction of nonroutine documents, necessary costs associated with obtaining the attendance of witnesses for the defense, investigator fees and expenses, expert witness fees and expenses and fees for interpreters and assistive communication devices necessary for the purpose of communication between counsel and a client or witness in the case. Preauthorization to incur a fee or expense does not guarantee that a fee or expense incurred pursuant to the preauthorization will be determined to be necessary or reasonable when the fee or expense is submitted for payment.

(b) In a county or justice court, the request must be in the form of a motion to the court. The motion must be accompanied by a supporting affidavit that sets out in detail the purpose of the requested expenditure, the name of the service provider or other recipient of the funds, the dollar amount of the requested expenditure that may not be exceeded without additional authorization and the date or dates during which the service will be rendered or events will occur for which the expenditure is requested.

(c) In a circuit court, the request must be in the form and contain the information that is required by the policies, procedures, standards and guidelines of the Public Defense Services Commission. If the public defense services executive director denies a request for preauthorization to incur nonroutine fees and expenses, the person making the request may appeal the decision to the presiding judge of the circuit court. The presiding judge has final authority to preauthorize incurring nonroutine fees and expenses under this paragraph.

(d) Entitlement under subsection (7) of this section to payment for fees and expenses in circuit court is subject to the policies, procedures, standards and guidelines adopted under ORS 151.216 (Duties). Entitlement to payment of nonroutine fees and expenses is dependent upon obtaining preauthorization from the court, if the case is in county or justice court, or from the public defense services executive director, if the case is in circuit court, except as otherwise provided in paragraph (c) of this subsection and in the policies, procedures, standards and guidelines adopted under ORS 151.216 (Duties). Fees and expenses shall be paid:

(A) By the county, in respect to a proceeding in a county or justice court.

(B) By the public defense services executive director from funds available for the purpose, in respect to a proceeding in a circuit court.

(C) By the city, in respect to a proceeding in municipal court.

(4) Upon completion of all services by the counsel of a person determined to be eligible for appointed counsel, the counsel shall submit a statement of all necessary and reasonable fees and expenses of investigation, preparation and presentation and, if counsel was appointed by the court, a statement of all necessary and reasonable fees and expenses for legal representation, supported by appropriate receipts or vouchers and certified by the counsel to be true and accurate.

(5) In a county or justice court, the total fees and expenses payable under this section must be submitted to the court by counsel or other providers and are subject to the review of the court. The court shall certify that such amount is fair reimbursement for fees and expenses for representation in the case as provided in subsection (6) of this section. Upon certification and any verification as provided under subsection (6) of this section, the amount of the fees and expenses approved by the court and not already paid shall be paid by the county.

(6) In a county or justice court, the court shall certify to the administrative authority responsible for paying fees and expenses under this section that the amount for payment is reasonable and that the amount is properly payable out of public funds.

(7) In a circuit court, the total fees and expenses payable under this section must be submitted to and are subject to review by the public defense services executive director. The public defense services executive director shall determine whether the amount is necessary, reasonable and properly payable from public funds for fees and expenses for representation in the case as provided by the policies, procedures, standards and guidelines of the Public Defense Services Commission. The public defense services executive director shall pay the amount of the fees and expenses determined necessary, reasonable and properly payable out of public funds. The court shall provide any information identified and requested by the public defense services executive director as needed for audit, statistical or any other purpose pertinent to ensure the proper disbursement of state funds or pertinent to the provision of appointed counsel compensated at state expense.

(8) If the public defense services executive director denies, in whole or in part, fees and expenses submitted for review and payment, the person who submitted the payment request may appeal the decision to the presiding judge of the circuit court. The presiding judge or the designee of the presiding judge shall review the public defense services executive director’s decision for abuse of discretion. The decision of the presiding judge or the designee of the presiding judge is final.

(9) The following may not be disclosed to the district attorney prior to the conclusion of a case:

(a) Requests and administrative or court orders for preauthorization to incur nonroutine fees and expenses in the investigation, preparation and presentation of the case; and

(b) Billings for such fees and expenses submitted by counsel or other providers.

(10) Notwithstanding subsection (9) of this section, the total amount of moneys determined to be necessary and reasonable for nonroutine fees and expenses may be disclosed to the district attorney at the conclusion of the trial in the circuit court.

Notes of Decisions

Where indigent defendant was provided witness fees to insure testimony of out-of-state psychiatrist who had examined him, denial of his mo­tion for appoint­ment of addi­tional psychiatrist was not viola­tion of constitu­tional due process. State v. Glover, 33 Or App 553, 577 P2d 91 (1978)

Applica­tion for attorney fees on ap­peal under this sec­tion, when available at all, must be made to court that made appoint­ment or con­ducted original pro­ceed­ings. State ex rel Roby v. Mason, 284 Or 427, 587 P2d 94 (1978)

Defendant must make adequate showing of need as condi­tion precedent to receipt of investigative expenses under this sec­tion, and defendant's at­tempted showing did not demonstrate requisite need where claim was that one of eyewitnesses men­tioned in police report had moved from former address and de­fense counsel had been unable to contact two other witnesses men­tioned in report. State v. Rovles, 41 Or App 653, 598 P2d 1249 (1979)

The statute does not, on its face, distinguish between convicted and acquitted defendants and thus a defendant who is acquitted may be re­quired to pay all or part of the costs incurred by the county for her appointed counsel. State v. Arms, 60 Or App 400, 653 P2d 1004 (1982), Sup Ct review denied

This sec­tion unconstitu­tionally chills an indigent defendant's Sixth Amend­ment right to counsel in allowing judg­ment against an indigent defendant to pay costs of court-appointed counsel with no pro­ce­dure to insure defendant is able to repay without substantial hardship. Fitch v. Belshaw, 581 F Supp 273 (1984)

Trial court did not abuse its discre­tion in denying defendant's mo­tion for investigative expenses for expert to testify on effect on breath test of taking DMSO, because defendant did not, as re­quired by this sec­tion, convince court that expense was necessary to prepare and present adequate de­fense. State v. Underwood, 91 Or App 668, 756 P2d 72 (1988), Sup Ct review denied

Where defendant requested expert witness fees under this sec­tion, and affidavit reflected that expert would perform four hours of service for which reasonable charge would be $60 per hour, requesting "min­i­mum" fee of $1,000 for expert was unreasonable as matter of law. State v. Gage, 106 Or App 153, 806 P2d 1159 (1991)

Trial court did not abuse its discre­tion in finding that pretrial public opinion poll to gauge extent of pretrial publicity was not necessary and proper in prepara­tion of case. State v. Rogers, 313 Or 356, 836 P2d 1308 (1992)

Prohibi­tion against disclosure of de­fense counsel expenses to district attorney prior to conclusion of "case" remains in effect until conclusion of ap­peal or of pro­ceed­ings on remand. State v. Cunningham, 161 Or App 345, 985 P2d 827 (1999)

Atty. Gen. Opinions

Court adop­tion of standard fee schedules for attorneys appointed to represent indigent defendants, (1980) Vol 40, p 492; County contract with attorneys for legal de­fense of indigents at less than $30.00 [bad link] per hour, (1981) Vol 41, p 331

Notes of Decisions

Public Defender lacked standing to prosecute ap­peal of con­vic­­tion for driving under influence of intoxicants obtained in absentia and without defendant's authoriza­tion. State v. Lyon, 36 Or App 255, 584 P2d 345 (1978)

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